# Petition — Williams v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1069

## Text

_— Supreme Court U.S,
FILED

77-916 ' DEC 27 1977

“MICHAEL RODAK, JR., CLERK

IN THE SUPREME COURT OF 1

UNITED STATES

Fall Term 1977

JO ANN WILLIAMS
Petitioner
and
CLARENCE WEBB
Petitioner
-vs-
UNITED STATES OF AMERICA

Respondent

Petition for Writ of
Certiorari to the
United States Court of
Appeals for the
Sixth Circuit

LESLIE I. GAINES, JR. JOHN ANDREW WEST

GAINES & GAINES 4545 Carew Tower

1212 Mercantile Library Cincinnati, OH 45202
Building ATTORNEY FOR PETITIONER

414 Walnut Street

Cincinnati, OH 45202 FRED H. HOEFLE

ATTORNEY FOR PETITIONER 400 2nd National Bldca.
Cincinnati, OH 45202

TABLE OF CONTENTS

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Questions Presented For Review. .
Constitutional Provisions Involved
Statement of the Case .......
Reasons for thea Writ .. «+ «eee s
CONGLUREGR « «4 6 3 «6 ‘0 & ee @ 68
Court of Appeals (Order) .....
District Court--Northern District of

Ohio--Western Division (Memoran-
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14

35

PETITION

The petitioners, Jo Ann Williams and
Clarence Webb, respectfully pray that a
writ of certiorari be issued to review the
judgment and opinion of the United States
Court of Appeals for the Sixth Circuit,

entered December 6, 1977.

OPINIONS BELOW

A) Sixth Circuit Court of Appeals.

The order of the Court, to be unreported is
reproduced at Appendix, p. . The court
ruled that the District Court did not err
in denying the Petitioners’ Motion to Sup-
press Evidence. This order was entered of
record December 6, 1977.

B) The United States District Court,

Northern District of Ohio, Western Division.

The memorandum and order of Judge Walinski,
an unreported opinion, is reproduced at

Appendix, p. . This order denied the

Petitioners’ Motion to Suppress Evidence.

It was entered of record December 20, 1976.

JURISDICTION

The jurisdiction of this court is in-
voked under 28 U.S.C. § 1254(1). The order
of the Court of Appeals was entered of re-

cord December 6, 1977.

QUESTIONS PRESENTED FOR REVIEW

(1) Whether surreptitious surveillance of
a private room by a government agent is, in
fact, a search of a constitutionally pro-
tected area.

(2) Whether this warrantless surveillance
conducted in the absence of exigent circum-
stances constitutes an unlawful search.

(3) Whether the initial illegality of the
surveillance denies the government the
right to use or act upon anything heard.

(4) Whether the ensuing search is unlawful

when a law enforcement officer conducts a

limited search for weapons without reason-
able grounds to believe his safety is in

danger.

CONSTITUTIONAL PROVISIONS INVOLVED

FOURTH AMENDMENT TO THE UNITED STATES
CONSTITUTION:

"The right of the people to

be secure .. . against unreason-

able searches and seizures shall
not be violated ..."

STATEMENT OF THE CASE

A) Procedure

The Petitioners were arrested in Toledo,
Ohio, on June 19, 1976, and charged with
possession of heroin and cocaine in viola-
tion of 21 U.S.C. 841(a) (1) and 18 U.S.C. 2.
Prior to trial, Petitioners filed jointly a
Motion to Suppress Evidence. This Motion
was denied December 20, 1976.

The Petitioners then entered pleas of
guilty as charged to two counts of the

indictment involving 21 U.S.C. 841l(a) (1).

The trial court allowed the Petitioners to
expressly reserve a right to appeal from
the order of the District Court.

The Petitioners were sentenced on
May 6, 1977. Notice of Appeal to the Sixth
Circuit Court of Appeals was filed on
May 16, 1977. Upon consideration of the
joint brief by the Petitioners and a hear-
ing on the matter, the Court of Appeals
affirmed the ruling of the District Court.

The basis for federal jurisdiction in
the District Court was a federal indictment
returned on August 25, 1976, against the
Petitioners. The constitutional objections
and federal questions raised in this Peti-
tion were expressly discussed in the Peti-
tioners' Motion to Suppress Evidence.

B) The Facts

On June 18, 1976, Defendants, Jo Ann
Williams and Clarence Webb, driving a 1976

Lincoln Continental automobile, bearing

Ohio license plates, arrived at the Toledo
Airport, just outside Toledo, Ohio, parked
their vehicle near the Airport Motel.
Defendant Williams entered the motel at
approximately 6:00 p.m. and registered
using a Detroit, Michigan, address.

Preliminary Inquiries by Airport Security

At approximately five minutes past six
(6) o'clock in the evening on this same
date, Lieutenant Velliquette, airport se-
curity patrol, was notified by an airport
maintenance man that an automobile match-
ing the description of that driven by
Defendants had entered on the airport
grounds, driving in an “erratic” manner.

Officer Velliquette, after receiving
this information concerning erratic driv-
ing, left his station and proceeded to
the Airport Motel where he arrived within
several minutes after being contacted.

Officer Velliquette testified that he went

to the motel to discuss the driving viola-
tion with the vehicle operator. Officer
Velliquette saw the 1976 Lincoln Continent-
al automobile parked near the motel, and,
after taking down the license plate numbers,
began looking for the occupants of the
vehicle. Officer Velliquette questioned
several workmen who were working outside
the motel, and was told that the occupants
of the vehicle had entered into the motel.
Officer Velliquette entered into the motel
and was informed by the desk clerk that a
Black Male and Black Female had just re-
gistered and were assigned to room 115.
Officer Velliquette testified that after
this initial investigation, that his sus-
picions became aroused. According to
Officer Velliquette, the basis for his sus-
picions were: (1) a non-local license
plate number when the occupants had regis-

tered with a Detroit, Michigan, address

“Appendix, p. 57); (2) the suspicious
"“eyeballing" by Defendant Webb of Velli-
quette when the latter was questioning the
room clerk Appendix, p. 58); (3) the
Defendant Webb's peering out of his motel
window as he was driving away. Appendix,
p. 58). The combination of these incidents
led Officer Velliquette to believe that he
should contact Paul Markonni, a special
agent of the Federal Drug Enforcement Ad-
ministration, United States Department of
Justice, who was coincidentally present

at the Toledo Airport at this time, and
advise Officer Markonni that something
was "suspicious."

Initial Involvement of the Federal Agent

Agent Markonni was at the airport to
familiarize himself with peak traffic
periods and the physical layout of the
airport. Upon his arrival, he had iden-
tified himself to airport security and
* Refers to Joint Appendix filed with

Brief submitted to Sixth Circuit
Court of Appeals

5

had asked to be informed of anything
unusual. “Appendix, p. 101.) At approxi-
mately 6:10 p.m. that day, Officer Velli-
quette personally informed Agent Markonni
that something was suspicious at the motel.
Both officers then went to the motel where
Markonni was introduced to the room clerk.
{Appendix, p. 106.) Officer Markonni again
verified the registration of Defendants
Williams and Webb and made further inquir-
ies as to their activities since their
-arrival at the Airport Motel. Agent Mar-
konni secured the following information:
(1) that Williams had registered and had
given a Detroit address; and (2) that two

telephone calls had been placed from room

115 by Defendants to a number in Los Angeles,

California. *(Appendix, p. 107.) Agent
Markonni, at this time, told the clerk to
advise him of any future telephone calls

made to or from room 115.

f

Surveillance of the Defendants

Agent Markonni, while continuing his
surveillance of room 115, contacted the
Toledo Police Department and requested a
license number check on the 1976 Lincoln
Continental. ‘“(Appendix, p. 104.) In addi-
tion, Agent Markonni contacted, by tele-
phone, law enforcement officers in Los
Angeles, California, and requested that
they verify the listing and address of the
telephone number which had been called from
Defendants’ room. At this time, Agent Mar-
konni also registered as a guest specifi-
cally requesting and receiving the room
adjoining that occupied by Defendants.
Agent Markonni was assigned to room 114.

From approximately 9:30 p.m. on
June 18, 1976, until approximately 2:15
a.m. the morning of June 19, 1976, Officer
Markonni maintained intensive surveillance
of room 115 from the adjoining room, 114.

During this span of time, Officer Markonni

made several telephone calls, but did
not make any attempt to obtain an ar-
rest warrant for the occupants of room
115. He was also advised by Cecegneny,
that the Los Angeles phone number
called by the Defendants was unlisted
and that Detroit authorities did not
find a Jo Ann Williams at the address
she had registered. ‘Appendix, p.115.)

Conversation Overheard by Agent Markonni

At approximately 2:15 a.m., the
morning of June 19, 1976, Officer Mar-
konni was advised by the desk clerk that
a yellow and white colored automohile,
bearing Ohio license plates and occupied
by three male blacks, had arrived outside
the motel.

Officer Markonni was also advised
that one of the occupants, an unidentified
male black, had exited the automobile,
entered the motel, and walked towards room
115. Officer Markonni testified that he

then put his ear to the door connecting

10

with room 115 and overheard the following
conversation:
“What have you got?”

"Fifteen of boy and some of girl, if
you want."

"Let's get out of here.” *(Appendix,
p. 79.)

Within moments after hearing the
above quoted conversation, according to
Officer Markonni, the Defendants, accom-
panied by the unidentified male black,
exited the motel and entered the motel |
parking area where the Defendants, along
with the unidentified male black, entered
into the 1976 Lincoln Continental auto-
mobile. At this point in the sequence of
events, according to Officer Markonni, the
1976 Lincoln Continental automobile and
the yellow and white automobile, occupied
by two unidentified male blacks, left the
airport grounds and headed east on Airport
Highway.

Observing from his motel window that

ll

€

the two automobiles were leaving the
airport, Officer Markonni followed. tAp-
pendix, p. 82.) Officer Markonni followed
these two vehicles from the time they

left the airport grounds at 2:15 a.m.,
until 3:00 a.m., when both vehicles pulled
into a parking lot near Todedo in a busi-
ness district. After making unexplained
stops in two parking lots, the vehicles
stopped in a third parking lot. “Appendix,
p. 83.) Agent Markonni then observed the
unknown person in the Lincoln Continental
leave that vehicle, walk to the Mercury,
and return to the Continental. This se-
quence was repeated once again and the
vehicles drove away simultaneously.

The Arrest and Search of the Defendants

Offcier Markonni followed the vehicles
east on Dorr Street until they turned onto
Detroit Avenue. At that time, he inter-
cepted a police cruiser and requested

assistance in stopping these vehicles.

12

*(Appendix, p. 89.) With the aid of local
police, Officer Markonni stopped the Defen-
dants‘' vehicle on the entrance ramp to
Interstate 475. The yellow and white
Mercury vanished, never being located or
identified prior to these proceedings.
Officer Markonni approached the driv-
er's side of the 1976 Lincoln Continental
and ordered Defendant Webb out of the
vehicle. Defendant Webb complied. *(Appen-
dix, p. 89.) When Defendant Williams was
ordered out of the vehicle, she continued
sitting in the front seat. Officer Mar-
konni'‘asked her to hand out her pocket-
book, but she remained silent. *(Appendix,
p. 90.) At this point, Officer Markonni
grabbed the handbag and reached inside,
finding heroin and cocaine. Officer
Markonni's stated purpose in entering the
handbag was "To protect myself in terms

of weapons." Appendix, p. 90.) Both

13

Defendants were then arrested and charged
as per the indictment.

REASONS FOR THE WRIT

Petitioners respectfully submit that
the order of the District Court and the
affirmance by the Court of Appeals are
in conflict with the decision of this

Court in Katz v. United States, 389 U.S.

347 (1967).

(1) Surreptitious surveillance of a
Private room by a government agent is,
in fact, a search of a constitutionally
protected area.

The fact that Agent Markonni did
conduct an intensive surveillance on the
Defendants while they were occupying room
115 is undisputed and it is also undis-
puted that this surveillance was at least,
in part, conducted by eavesdropping on
the Defendants' conversation from his ad-

joining motel room. The conduct of the

14

arresting agent is prohibited by the

Fourth Amendment.

The rationale of Katz v. United States,

389 U.S. 347, 19 L. Ed.2d 576, 88 S.Ct.
507 (1967) establishes the right of priv-
acy upon which these Defendants justifi-
ably relied. The following language of
Justice Stewart, cited hundreds of times,
is again applicable:
"What a person knowingly

exposes to the public, even in

his own home or office, is not

a subject of Fourth Amendment

protection, but what he seeks

to preserve as private, even

in an area accessible to the

public, may be constitutionally

protected."

Justice Harlan, in a concurring opin-
ion, further qualified this protective
language. For suppression of overheard
speech, the speaker must have justifiably
relied upon his privacy. This requires

(1) an actual and reasonable expectation

on the part of the individual and (2) an

15

expectancy that society is prepared to
recognize as reasonable. Courts, in ap-
plying the Katz doctrine, have uniform-

ly applied both a subjective and an objec-
tive test in evaluating the right of pri-

vacy. United States v. Holmes, 521 F.2d

859 (5th Cir. 1975); United States v. Kim,

415 F. Supp 1252 (U.S. Dist. Ct., D.
Hawaii 1976).

The facts surrounding the Katz
decision and the facts herein are closely
in parallel. In the former, F.B.I. agents
attached an electronic recording device
outside of a public telephone booth from
which Katz placed calls. In the latter,
Agent .Markonni, without the aid of any
alessronie device, eavesdropped by ear

on the conversations of those then

occupying the adjoining room. In both
cases, arrest was made after the search.

-_

16

The Katz decision is also authority

in classifying this surveillance as a

search:

"The Fourth Amendment
governs not only the seizure
of tangible items, but ex-
tends as well to the record-
ing of oral statements that
are overheard without any
technical trespass under local
law: the reach of the Amend-
ment cannot turn upon the
presence or absence of a phy-
Sical intrusion into any
given enclosure."

For constitutional purposes, a motel
room is no less a private place than a

telephone booth. Hoffa v. United States,

385 U.S. 293, 17 L.Ed.2d 374, 87 S. Ct.

. 408 (1966); Stoner v. California, 376 U.S.

483, ha L.Ed. 2d oy. 84 S. Ct. 889 (1964).
Neither is it of constitutional importance
that the words of the Defendants here were
not physically seized by way of recording.
The capacity to claim the protection of
the Fourth Amendment against unreasonable

searches and seizures depends not upon

=

17

a property right, but upon whether the
area was one in which there was a rea-~
sonable expectation of freedom from gov-

ernmental intrusion. Mancusi v. DeForte,

392 U.S. 364, 20 L.Ed.2d 1154, 88 S. Ct.
2120 (1968). An examination or taking
of physical property is not required.

Silverman v. United States, 365 U.S. 505,

5 LiEd.2d 734, 81 S. Ct. 679 (1960).

That the Defendants were subjected to
a search by surveillance is amply supported
by authority. A search by definition is
a prying into hidden places for that which
is concealed. The Defendants herein mani-
fested at all times a concern and a desire
to conceal and protect their activities.
The telephone calls to Los Angeles and
the conversations overheard by Agent Mar-
konni transpired within the confines of
a supposedly private room and, but for

official governmental intrusion, these

18

private actions would have remained pri-
vate. Only by displaying police author-
ity was Agent Markonni able to gain ac-
cess to the following:

(1) cooperation from the room
clerk by informing him of
calls-placed to and from
room 115; and

(2) assignment to the adjoin-
ing room, 114,*where he
placed his ear to the door
and overheard an alleged
offer to sell narcotics.

These activities by Agent Markonni
constituted an intrusion into a motel
room in which the Defendants had a sub-
jective and reasonable expectation of
privacy. At the expense of violating
this privacy, governmental actions were
made with the specific intent of discov-
ering evidence of a crime. A search by
definition involves an invasion of pri-

vacy, while a seizure involves the taking

of property. United States v. Lisk, 522

F.2d 228 (7th Cir. 1975). The search

19

begins with the initial invasion of pri-
vacy and continues until the fruits or
evidence of a crime are seized. Conse-
quently, the prohibitions of the Fourth
Amendment apply to a search whenever the
government participates in such an inva-

sion of privacy. United States v. Davis,

482 F.2d 893 (9th Cir. 1973).

The activities of Agent Markonni
constituted a purposeful invasion of the
Defendants' reasonable expectation of
privacy, and this, by definition, is z
search.

The mandate of Katz in this situa-
tion is that the Fourth Amendment protects
people and not places. The issue before
this court is whether the tactics employed
by Agent Markonni are to be approved and
validated at the expense of individual

privacy. Defendants submit that the ex-

pectation of privacy they enjoyed in this

20

motel room was much more than an unrealis-
tic personal expectation. This is obvious
when one considers the lengths Agent Mar-
konni went to in order to conduct this
Surveillance. His actions went far beyond
routine police investigation. They included
checking the motel registration, verifying
the address given in Detroit, checking the
vehicle registration, making inquiries as
to the telephone numbers called, asking
the room clerk to inform him of any activ-
ity by the Defendants, and finally, con-
ducted surveillance from the adjoining
room. Only by getting his ear as close
to the connecting door as he could, was
Agent Markonni able to overhear the criti-
cal conversation in room 115. *(Appendix,
p.79.) Then as quietly as he could,

Agent Markonni looked out into the hall-
way to observe the Defendants leave the

motel.

21

The great lengths that Agent
Markonni went to in order to keep these
Defendants under surveillance suggest a
manifest invasion of privacy. All of
these actions were taken without

probable cause to arrest or to search.

The choice before this court is to legi-

timate covert surveillance by police,
lacking any reasonable grounds to
search, or to apply the protection of
Katz with full force. To legitimate
these tactics is to negate the pro-
tection of Katz whenever persons occupy
a motel room. This is contrary to the
spirit and peseene ot Katz and the
Fourth Amendment to the United States
Constitution which is supposed to guar-
antee freedom from unreasonable gov-

ernmental searches and seizures and a

right to personal privacy.

22

(2) Warrantless surveillance conducted
in the absence of exigent circumstances
constitutes an unlawful search.

When Agent Markonni caused the motel
room clerk to register him in the room
adjoining that of the Defendants, he pos-
sessed the following information:

(1) The Defendants' vehicle
bore Ohio license plates
while they had registered
using a Detroit, Michigan
address. ‘“(Appendix, p.107.)

(2) The room clerk could not
recall seeing any luggage.
‘Appendix, p. 107.)

(3) The Defendants' vehicle
had been reported to have
entered the airport grounds
driving the wrong way.
“Appendix, p.103.)

(4) Upon arrival, the Defen-
dants had placed a tele-
phone calli to an unlisted
number in Los Angeles,
California YAppendix, p.
107) and completed this
call later. Appendix,

p. 109.)

(5) The Defendant Webb had

looked at Officer Velli-
quette in a “suspicious

23

manner™ on two occasions.
*(Appendix, p. 104.)

(6) The Defendants had re-
ceived one telephone call
from Los Angeles, Califor-
nia. *(Appendix, p. 109.)
Armed with this information, Agent
Markonni began intensive surveillance

of room 115. This surveillance con-

tinued from 6:25 p.m., June 18, through

3:10 a.m. on June 19, 1976. MThrough- i

out this extensive time period, Officer”®
Markonni had access to a telephone with
which to verify certain information
received; however, he made no attempt
to obtain a search warrant or to obtain
an arrest warrant for the occupants of
room 115.

The facts known by Agent Markonni
at the time he conducted this search
did not amount to probable cause to
search. Had there been sufficient

facts for probable cause, a warrant

24

would still have been required. Searches
conducted without warrants have been held
unlawful notwithstanding facts unquestion-

ably showing probable cause. Agnello v.

United States, 269 U.S. 20, 70 L.Ed. 145,

46 S. Ct. 4 (1925). Searches conducted
without a warrant are per se unreasonable,

absent well-defined exigencies. Chapman

v. United States, 365 U.S. 610 (1960) and

Carroll v. United States, 267 U.S. 132,

45 S. Ct. 280 (1925).

In view of the hours over which this
surveillance was conducted, no exigencies
were present. Had the agent applied for
a search warrant, none could have law-
fully been issued given the known facts.

In Similar Situations, surveillance
of this nature has been held unlawful.

In State v. Person, 34 Ohio Misc. 97, 298

N.E.2d 922 (1973), the court found that
eavesdropping at a door to a private room

from a common passageway and looking

25

through a key hole constituted a search
within the meaning of the Fourth Amend-
ment. Surveillance became a search

when it violated the Defendant's reason-
able expectation of privacy. It was held
to be unlawful since no warrant was issued
and since eavesdropping, even from a law-
fully occupied vantage point, does not
fall within the plain view exception to
the warrant requirement. This reas@ne
ing of a Toledo, Ohio, court is distinctly
relevant here.

Also applicable are a series of de-
cisions from California courts. The
leading case in California being People
v. Triggs, 106 Cal. Rptr. 408, 506 P.2d

“~
232 (1973). In Triggs, surveillance of

two men occupying a stall in a public
men's room was held to be a search. It
was found further to be an unreasonable

search since the surreptitious activity

26

was done with the intention to find evi-

dence of guilt and begun without reason-

able cause to search the Defendant. The

testimony of Agent Markonni leaves no

doubt that the principle of Triggs is

applicable here:

QO:

To

When you took the room, your
purpose was to eavesdrop on
room 115, is that correct?

My purpose was to conduct
surveillance of the room
while I was in there and,
also, to use the phone in
there. ..

In addition, you would lis-
ten through to any conver-
sation you could hear?

Yes.

You did so?

Yes, I did, but I didn't do
it then. “(Appendix, p. 112.)

conduct surveillance upon activities

of a private motel room without reasonable

cause to do so is constitutionally imper-

missible activity.

27

The result reached in People v.

Triggs, (supra) is now being applied in

other jurisdictions. In People v. Diaz,

85 Misc. 2d 41, 376 N.Y.S.2d 849 (1975),
visual surveillance of Defendants from
an opening at the top of a department
store dressing room was held to be an

unlawful search. In People v. Harfmann,

555 P.2d 187 (1976) a Colorado Court of
Appeals held a visual observation that
infringed upon a reasonable expectation
of privacy constituting an unlawful
search. Under basically the same facts
as in Triggs, the same result was reached

in Kroehler v. Scott, 391 F. Supp. 1114

(E.D. Penn. 1975). The District Court
found that persons using toilet stalls
in public restrooms have reasonable
expectations of privacy, both subjec-
tively and objectively reasonable. Fur-

ther, the Fourth Amendment requires a

28

probable cause finding by a magistrate
before governmental intrusion is lawful.
The Defendants in this case, beyond
dispute, had a subjective expectation of
privacy while residing at the motel. Re-
cent decisions cited herein have estab-
lished both a subjective and reasonable
expectation of privacy in analogous
Situations. These situations are legally
indistinguishable from the facts herein.
In the visual surveillance cases
cited above and in the present case, the
searches were conducted lacking probable
cause to search. To accept these searches
would indeed dispense with the need for a
magistrate's finding of probable cause.
Therefore, on this basis, the lack of
probable cause to search, Defendant's

counsel would distinguish United States

v. Fisch, 474 F.2d 1071 (9th Cir. 1973)

and United States v. Llanes, 398 F.2d

29

880 (2nd. Cir. 1968.)

In Fisch, the court specifically
recognized the fact that there was rea-
sonable cause for the pclice to believe
that the room in question was being used
in the aid of a criminal venture. This
was also the case in Llanes where officers
actually viewed white powder being placed
in glassine envelopes. However, in the
present case, the agent's basis for the
surveillance was mere suspicion.

(3) The initial illegality of the surveil-
lance denies the government the right to
use or act upon anything heard.

The end cannot justify the means
herein, and the surveillance cannot be
justified by what the subsequent arrest
produced. Given the initial illegality,
evidence seized is fruit of the poison-

ous tree and must be suppressed. Wong

Sun v. United States, 371 U.S. 471, 83

r

30

S. Ct. 407, 9 L.Ed.2d 441 (1963); Chapman

v. United States, 365 U.S. 610, 81 S. Ct.

776, 5 L.Ed.2d 828 (1961).

What a court must determine is whether
the looking and listening carried on was
an intrusion upon what the Defendants
reasonably sought to preserve as private.

See Wattenburg v. United States, 388 F.2d

853 (9th Cir. 1968).
Appellants submit that the decisions in

Johnson v. United States, 338 U.S. 10 (1948)

and in McDonald v. United States, 335 U.S.

451, 69 S. Ct. 191, 93 L.Ed. 153 (1948)
should be likewise reached in this case.
This court should be guided by the

following language from Johnson v. United

States, 338 UvS. at 14:

"The right of officers to
thrust themselves into a home
is also of grave concern, not
only to the individual, but to
a society which chooses to
dwell in reasonable security
and freedom from surveillance.
When the right of privacy must

31

reasonably yield to search is,

as a rule, to be decided by a

judicial officer, not by a

policeman or a governmental

agency."

(4) When a law enforcement officer con-
ducts a limited search for weapons with-
Out reasonable grounds to believe his
safety is in danger, this search is un-
lawful.

Agent Markonni testified at the evi-
dentiary hearing concerning the arrest of
Defendant Williams. ‘*(Appendix, p. 90.)
Upon approaching the Defendants’ vehicle,
he ordered Defendant Williams out of the
car, but she did not comply. As she
remained in the vehicle, Agent Markonni
got inside. Defendant Williams then
refused to turn over her handbag as
requested by Agent Markonni. At this
time, he seized the purse and opened it,
finding the majority of narcotics that

are the basis of these charges. ‘“*(Appen-

dix, p. 90.) Agent Markonni's stated

32

purpose in searching the purse was "To
protect myself in terms of weapons."
*(Appendix, p. 90.) This purpose was
confirmed by him on cross-examination,
again stating his intent was self-
protective search. *(Appendix, p. 130.)
Given the facts known to Agent
Markonni at the time he entered the ve-
hicle, a self-protective search was not
lawful. The sole justification of an
officer's search of a person for self-
protection is discovery of weapons to
prevent harm to himself and others. The
reasonableness of the action depends upon
specific, articulable grounds to believe
a protective search is necessary. Terry

v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20

L.Ed.2d 889 (1968).
The key issue, as stated in Terry

v. Ohio, (supra), is whether a reasonably

prudent person in those circumstances

would be warranted in believing his safety

33

was in danger. Most importantly, in
justifying the search, the police officer
must be able to point to specific and
articulable facts which reasonably warrant
the intrusion.

The search of Defendant Williams’
purse cannot be justified as a protec-
tive search. Agent Markonni had no
reason to believe his safety was in dan-
ger. This is especially true when the
search of the purse was conducted after
it had been taken from Defendant Williams.
Even had there been weapons inside the
purse, any danger to Markonni was removed
when he took the purse from Williams.

Having been carried out as a protec~
tive search, Officer Markonni's actions
cannot later be termed a search incident
to arrest. The purpose of an arresting
officer then becomes the purpose to

search. When an officer does not believe

34

an arrest has been made, there can be no

search incident to an arrest. United

States v. Dalpiaz, 494 F.2d 374 (Ky. 1974).

A required element of an arrest is the
intent of the officer to make the arrest.

State v. Terry, 34 Ohio Ops.2d 237, 214

N.E.2d 114 (1966). When Officer Mar-
konni stopped the Defendants' vehicle
and ordered them to exit, he did not do
sO with purpose to arrest.

Since the intrusion into Defendant
Williams’ purse was not justified ini-
tially, all evidence seized as a result
of that intrusion is fruit of the poi-
sonous tree and must be suppressed.

People v. Hurst, 325 F.2d 891 (9th Cir.

1963).

CONCLUSION

The Petitioners respectfully request

that a Writ of Certiorari be issued

35

Circuit,

to the Court of Appeals for the Sixth
in order to review the issues

raised in this Petition.

Respectfully Submitted,

JOHN ANDREW WEST

4545 Carew Tower
Cincinnati, OH 45202
ATTORNEY FOR PETITIONFR,
JO ANN WILLIAMS

LESLIE I. GAINES, JR.

GAINES & GAINES

1212 Mercantile Library
Building

414 Walnut Street

Cincinnati, OH 45202

ATTORNEY FOR PETITIONER,

CLARENCE WEBB

FRED H. HOEFLE

400 2nd National Blda.
Cincinnati, OH 45202
SPONSORING ATTORNEY

36

A FILED

Nos. 77-5191 and -5192

UNITED STATES COURT OF APPEALS ~ DEC 6 1977
FOR THE SIXTH CIRCUIT

'‘OHN P. HEHMAN, Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee

vs No. 77-5191

CLARENCE WEBB,

Defendant-Appellant
—- - ORDER
UNITED STATES OF AMERICA,

Plaintiff-Appellee

vs No. 77-5192

JO ANN WILLIAMS,

Defendant-Appellant :

Before WEICK, PECK and ENGEL, Circuit Judges.

The defendants were charged in a two count indictment
with possession of narcotics with intent to distribute heroin
and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 2.

The District Court denied a motion filed by the de-
fendants to suppress evidence.

The defendants then entered pleas of guilty and were
sentenced, but they expressly reserved their right to appeal from
the order of the District Court denying their motion to suppress

evidence. We disapproved of this practice in United States v.

Cox, 464 F.2d 937 (6th Cir. 1972). When the defendants enter

a plea of guilty to an indictment they waive all non-jurisdic-

Nos. 77-5191 and -5192 - 2

tional defects.
Nevertheless, in this case we have examined the

evidence taken on the motion to suppress and in our opinion

the District Court did not err in the denial of said motion.

The judgment of conviction is therefore AFFIRMED.

ENTERED BY ORDER OF THE COURT
John P. Hehman, Clerk

By aa Aine

Grace Keller, Chief Deputy

~

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHTO :
WESTERN DIVISION o2:

UNITED STATES OF AMERICA,
Plaintiff, No. CR 76-72

CLARENCE WEBB, et al., MEMORANDUM and ORDER

eee eee ee ee eet

Defendants.

WALINSKI, J:

This cause came to be heard on defendants’
motion to suppress certain evidence seized by law enforcement
officers on June 19, 1976, from the purse of defendant
Williams and from the automobile in which defendants Williams
and Webb were traveling. An evidentiary hearing on this
motion was held on November 18, 1976.

Ne 3.

Defendants seek to suppress certain quantities of
heroin and cocaine found and seized by law enforcement
officers during the course of a warrantless search. The
events preceding the search are critical to the motion and
require elaboration.

The evidence adduced at the suppression hearing
established that defendants Webb and Williams checked into the
Airport Motel at the Toledo Express Airport, Toledo, Ohio, at
approximately 6:00 p.m. on June 18, 1976. The couple's
presence was brought to the attention of Special Agent Paul

Markonni of the Drug Enforcement Administration by an airport

security officer who had become mildly suspicious of the

couple.

(2)

THPough inquiries to the motel desk clerk and
other law enforcement agencies, Agent Markonni secured the
following information-.regarding the couple:

1) The couple had arrived in a green 1976

Lincoln Continental bearing non-local Ohio
plates. A check of the plates indicated that
they were newly issued and the owner therefore
could not be immediately determined.

2) Although the auto bore Ohio plates,

the registering party, Jo Anne Williams, gave a
Detroit, Michigan address.

3) The desk clerk could not recall seeing
either defendant bring luggage into the room.

4) Two phone calls had been placed by the.
defendants to a number in Los Angeles,
California.! One phone call had been received
by the couple with the caller initially
requesting to speak to "Clink" and then asking
for the party in Room 115, the room in which the
defendants were registered.

This information caused Agent Markonni to suspect
that the defendants might be involved in drug trafficking, and
he therefore took a room next to the room in which the
defendants were registered in order to conduct further
surveillance. He then made additional phone calls in which he
learned that the phone number in Los Angeles which the
defendants had been calling was unlisted, and that Detroit
authorities could find no one by the name of Jo Anne Williams
listed at the address she had given.

At approximately 2:00 a.m. on June 19, 1976,

Agent Markonni was awoken by the motel desk clerk and informed

lagent Markonni testified that the defendants'
attempts to contact persons in Los Angeles were significant to
him because of his knowledge that Los Angeles is presently the
major distribution center for heroin and cocaine coming into
the United States.

(3)

that several persons had arrived at the motel in a car and
that one individual had gone to the room occupied by the
defendants. Agent Markonni testified that he then put his
ear to the door connecting his room with the room of the
defendants and, without the aid of any electronic listening
devices, overheard the following conversation:

Male One: "What have you got?”

Male Two: "Fifteen of boy and some of girl, if
you want.”

Male One: “Let's get out of here.”

Agent Markonni testified that through his
experience as a drug enforcement agent, he knew that in street
drug parlance “boy” means heroin and "girl" means cocaine.
Therefore, having overheard this conversation he had reason to
believe that a drug transaction was about to take place. He
further testified that since the occupants of the next room
left immediately, he had no time to place a phone call for the
purpose of securing assistance or seeking arrest or search
warrants prior to following the defendants and their
companion.

Agent Markonni testified that having observed the
defendants and their visitor enter the 1976 greenon green Lin-
coln Continental and pull away from the motel followed by a yellow
on yellow Montego, he then entered his own car and followed.
After traveling a number of blocks and after making two
unexplained stops in parking lots without any movement by the
occupants of either car, Agent Markonni observed the vehicles
stop in a lighted parking lot in the area of Dorr and Secor.

Agent Markonni then observed the person riding in the

(5)
(4)

or there must exist both probable cause to believe that the
passenger seat of the Lincoln leave the Lincoln and go to the

automobile contains evidence or the fruits of a crime and
Montego, return to the Lincoln, go back to the Montego, return

exigent circumstances making it impracticable to secure a
to the Lincoln and then enter the Montego.

search warrant.°
Both cars then pulled out of the lot and with

In determining whether the warrantless search and
Agent Markonni following, proceeded east on Dorr Street and

seizure of narcotics in the instant case is supported by
then turned north onto Detroit Avenue. At that point Agent

either of these exceptions to the general rule against
Markonni was able to flag down a Toledo Police Department -

; warrantless searches, the Court's initial inquiry is directed
vehicle, and with the assistance of the officers manning that

to the legality of Agent Markonn.i's “intrusion” into the
vehicle, stopped the Lincoln Continental shortly after the

conversation of the defendants conducted within the confines
vehicle moved onto Interstate 475 via the ramp at Detroit

of their motel room. While the defendants take the position
Avenue.

that with or without access to the motel conversation quoted
Agent Markonni testified that he promptly ordered

| above there was insufficient probable cause to justify a
the defendants out of the vehicle. When defendant Williams

warrantless arrest and search, it is the Court's view that if
did not move from the vehicle, Agent Markonni entered and

the conversation of the defendants was properly within the
observed Williams reach for her purse which was on the floor

knowledge of Agent Markonni, probable cause did exist to
beneath her legs. At that time Agent Markonni grabbed the

arrest the defendants and to conduct a warrantless search.
purse from her, agd upon opening it, found several packets of

Therefore, the critical question in deciding defendants'
narcoties. A subsequent search of the vehicle revealed an

additional packet of heroin in the seat where defendant Webb

>see Coolidge v. New Hampshire, 403 U.S. 4 he

was seated. (1971); Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v.

United States, 267 U.S. 132 (1925); United States v. Beck,

II. 51l F.2d 997 (6th Cir. 1975); United States v. Kemper, 503
F.2d 327 (6th Cir.), cert. denied, 419 U.S.1124 (1975).

The warrantless search of an automobile is

Probable cause exists where "the facts and
justified in only two instances. The search must either be circumstances within [the officers’) knowledge and of which
they have reasonably trustworthy information [are] sufficient
within themselves to warrant a man of reasonable caution in

| the belief that an offense has been or is being committed.”
| search must be contemporaneous with the arrest and limited to United States v. Upthegrove, 504 F.2d 682, 686 (6th Cir.

incident to a lawful arrest, in which case the scope of the

3 1974), quoting Carroll v. United States, 267 U.S. 132, 162
the “area within the immediate control" of the person arrested, (1925).

The basic test for whether exigent circumstances
exist is whether “it is not practicable to secure a warrant."
United States v. Blanton, 520 F.2d 907, 912 (6th Cir. 1975),
quoting Carroll v. United States, 267 U.S. 132, 153 (1925).

2see Chimel v. California, 395 U.S. 752 (1969);
United States v. Robinson, 414 U.S. 218, 224 (1973); United | 9
States v. Hayes, 518 F.2d 675 (6th Cir. 1975).

f

P-043-8 fri aI 8 78 S08. 4048

P.043-8 L Fri wi—o.0 78 150m 4045

P-943-8

(6)

motion is whether the information obtained by Agent Markonni,
by placing his ear to the door of the defendants’ motel room,
was secured in violation of their Fourth Amendment rights to
be free from unreasonable search and seizure.

IIt.

Under the rule of United States v. Katz, 389 U.S.

347 (1967), this question turns on whether the defendants
enjoyed an expectation of privacy with respect to their
conversations within the motel room they occupied, and whether
that expectation was “one that society is prepared to
recognize as ‘reasonable.'" 389 U.S. at 361. The latter
question is not one which may be decided as a matter of law,
bur rather requices an examination of the facts and
circumstances of the particular case. While it is persons and not
places that are protected by the Fourth Amendment, the
environment of the defendants is clearly critical in
determining whether or not they entertained a reasonable

expectation of privacy. See United States.v. Fisch, 474 F.2d

1071 (9th Cir. 1973), aff'g United States v. Perry, 339 F.

Supp. 209 (S.D. Cal. 1972).
The Court would not dispute the defendants’
characterization of a motel room, even though transiently

occupied, as a private place. See Hoffa v. United States, 385

U.S. 293 (1966); Stoner v. California, 376 U.S. 483 (1964).

That is not to say, however, that persons occupying a motel
room enjoy a reasonable expectation of privacy as to all
conduct or conversations carried on therein. The conversa-

tions of the defendants and their guest in the instant case
h

et

_

(7)

were audible to the naked ear in the adjoining room. Agent
Markonni clearly had a right to occupy that room, and the
defendants certainly are charged with the knowledge that such
an adjoining room existed, and that it was not unlikely that
the adjoining room would be occupied.

Defendants would make much of the fact that
Agent Markonni “deliberately” attempted to overhear their
conversations by putting his ear to the door connecting the
two rooms. However, the Court finds nothing constitutionally
objectionable inthis mode of surveillance in the circumstances

of the instant case. Contrast United States v. Case, 435 F.

2a 766 (7th Cir. 1970). Although the conduct of the
defendants prior to the point at which Agent Markonni was able
to overhear the critical conversation may not have constituted
sufficient probable cause to arrest the defendants, it clearly
provided Agent Markonni with reason to put the defendants
under surveillance. To bar mere eavesdropping as conducted by
Agent Markonni under the circumstances of the instant case
would unduly hinder the legitimate efforts of law enforcement
officers in the investigation of serious criminal activity.
Accordingly, the Court concludes that while the
defendants may well have entertained an actual and subjective
expectation of privacy, that expectation, under the facts and
circumstances of the instant case, is not “one that society is
prepared to recognize as reasonable." 389 U.S. at 361. There
was, therefore, no justifiable reliance by the defendants,
and therefore the eavesdropping by Agent Markonni did not

constitute a search and seizure in violation of the Fourth

PrP o43-8

5
both as a search incident to a lawful arrest

(8)

Amendment. Accord United States v. Sin Nagh Fong, 490 F.2d

527 (9th Cir. 1974); United States v. Perry, 339 F. Supp. 209

(S.D. Cal. 1972), aff'd sub nom. United States v. Fisch, 474

P.2d 1071 (9th Cir. 1973). See also United States v. Martin,

509 F.2d 1211 (9th Cir. 1975).
Vv.

Having resolved the initial search and seizure
question in favor of the government, the Court concludes that
the facts and circumstances known to Agent Markonni at
approximately 2:30 p.m. on the morning of June 19, 1976, were
sufficient to warrant a man of reasonable caution to believe
that a serious offense had been committed by the defendants,
and that the car in which they were riding contained evidence
or fruits of a crime. The Court further finds that exigent
circumstances existed which made it impracticable to secure a
search warrant. Therefore, it is the opinion of the Court

that the warrantless search in the instant case is supportable

under the rule

4see United States v. Blanton, 520 F.2d 907 (6th
Cir. 1975); United States v. Upthegrove, 504 F.2d 682 (6th
Cir. 1974).

> Although the defendants were not technically

_ placed under arrest until after the narcotics had been seized

| 1972).

from defendant Williams’ purse, for the purpose of determining
whether the search was incident to a lawful arrest, the
defendants were “arrested” at the time Agent Markonni forced

them from the car and made it clear that they were not free to

leave. See Henry v. United States, 361 U.S. 98, 103 (1959);

McDonald v. State of Arkansas, 501 F.2d 385 (8th Cir. 1974); Unit

States ex rel. Frazier v. Henderson, 464 F.2d 260 (2d Cir.
Moreover, since the Court has found that probable

| cause to arrest the defendants did exist at the time Agent

Markonni stopped their vehicle, it is not significant that the
vehicle was searched prior to formally completing the arrest.
(Footnote 5 continued on following page.)

j

7) 2r—8 © 78 (bom 4248

ex

1

043-8

of Chimel v. California, 395 U.S. 752 (1969), or alternately,

as a search based on the existence of probable cause and

exigent circumstances under the rule of Chambers v. Maroney,

399 U.S. 42 (1970) .° Accordingly, defendants’ motion to

suppress will be denied.

IT IS SO ORDERED.

Toledo, Ohio.

December 17, 1976.

(Continuation of Footnote 5.) See United States
v. Jenkins, 496 F.2d 57 (2d Cir. 1974), cert. denied, 420
U.S. 925 (1975); United States v. Murray, 492 F.2d 178 (9th
Cir. 1973); United States v. Skinner, 412 F.2d 98 (8th Cir.),
cert. denied, 396 U.S. 967 (1969). United States v. Shkoza,
406 F. Supp. 1065 (S.D. N.Y. 1975).

"see United States v. Birmley, 529 F.2d 103 (6th

1975); United States v. Martin, 509 F.2d 1211 (1975); and
cases cited inn. 4, supra.

ree anes

In conformity with Rule 77 (d) F.R.C.P.

Please take notice that the following order of judgment
was entered in this court on Decenber 20, 1976.
Mark Schlachet, Clerk

UNITED adel JUDGE |

Cir. 1976); United States v. Williams, 526 F.2d 1000 (6th Cir.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0264%3A1. Public record. Not legal advice.